• Key point: In some states, churches and denominational offices will be liable for the sexual assaults of a volunteer worker only if the worker satisfies the legal definition of a “servant.”
• Louisiana appeals court reversed a trial judge’s decision that a church and religious denomination were legally responsible for the sexual assaults committed by a volunteer youth worker. A volunteer youth worker in a Catholic church offered to provide tutoring services to a teenage girl who was experiencing difficulty with algebra. The volunteer tutored the girl on four occasions. Two of these sessions were in his home, and the other two were in an office of the church youth group. The girl alleged that the tutor tried to hug and kiss her while driving her home from the first three sessions. The fourth and final session (which occurred in a youth group office) involved the most serious allegations. The girl alleged that the tutor kissed her, shoved her to the floor, raised her blouse and began fondling and kissing her breasts. The victim begged the tutor to stop, which he did. While driving her home following this incident, the tutor allegedly placed the girl’s hand between his legs and asked if she wanted to touch him there. The girl’s parents were not aware of these incidents until several months later when they overheard a telephone conversation between their daughter and a friend. They immediately confronted their daughter with the allegations, and she acknowledged that she had been molested. The parents notified their priest, who met privately with the girl. The priest expressed his regret over the incidents and advised the girl to seek counseling at the church’s expense. The girl received counseling, but the church discontinued paying for the counseling after a month or so, claiming that it had no responsibility for the incidents. In part because of the incidents of molestation, the girl ran away from home and moved in with a boyfriend, and dropped out of high school. The girl’s parents later filed a lawsuit on behalf of their minor daughter against the tutor, the local church, the archdiocese, and the youth organization. The religious organizations were sued because the girl had met the volunteer tutor through his position with the local church’s youth organization. During the trial, evidence was presented that the tutor had at least one prior incident of improper conduct. The tutor apparently had viewed a pornographic movie in his home with several boys who were members of the church. However, there was no conclusive proof that church authorities had knowledge of this incident. A jury returned a verdict against the tutor in the amount of $170,000 for medical expenses, mental anguish, humiliation, and embarrassment. However, the jury found that none of the church defendants was responsible for the girl’s injuries. The trial judge, in an extraordinary action, rendered a “judgment notwithstanding the verdict” finding the church defendants to be legally responsible for the girl’s injuries despite the jury verdict to the contrary. The trial judge observed:
The testimony was abundantly clear that [the tutor] and his wife as the couple charged with responsibility for the Catholic youth organization at the church had access to these youngsters because of their responsibility and role; it was abundantly clear from the testimony that [the tutor] in fact had keys to the church buildings, and in one of the three instances where physical molestation took place it was in fact on church property in the building that [the tutor] was using for tutoring sessions. The other two instances I believe occurred in an automobile when he was transporting his youngster to and from tutoring. Based on tall of this, the court can find no distinction in the law for treating a volunteer differently from an employee. The court is of the opinion that had [the tutor] been an employee of the Roman Catholic Church that the church would have exposure and liability, and even though he was an unpaid worker at the church, in fact a volunteer, this court makes no distinction between a category of volunteer and worker, and for that reason will grant the motion for judgment notwithstanding the verdict and enter the same verdict with respect to the several church defendants.
The case was appealed. The church defendants argued that they could not be legally responsible for the volunteer tutor’s conduct since a “master-servant” relationship did not exist between the tutor and the church defendants. The church defendants claimed that the trial judge had committed error in failing to recognize this important distinction. The appeals court agreed. It observed:
Louisiana’s law on vicarious liability based on the respondeat superior doctrine is clear. Under the express provisions of [the Louisiana Civil Code, article 2320] “masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Under the jurisprudence interpreting this provision, the determination of whether a party may be held vicariously liable for the torts of another depends on whether the [one committing the misconduct] is characterized as a “servant.” Unquestionably, a principal is not liable for the torts of a nonservant agent. Liability does not flow merely from the existence of a principal-agent relationship.
[This] case involves a religious or charitable organization’s liability for the torts of a volunteer. Generally, “one who volunteers services without an agreement for or expectation of reward may be a servant of one accepting such services. Determination of whether a given volunteer is in fact a servant generally depends on the charitable organization’s right to control the activities of the volunteer. Determination of the right to control is a question of fact, based on consideration of the following factors: (1) degree to which the charity orders the volunteer to perform specific actions; (2) degree of contact between the charity and the volunteer; and (3) structural hierarchy of the charity ….
[In this case] the trial court failed to distinguish between servants and other types of agents, which is critical to determination of the application of respondeat superior vicarious liability under Louisiana law. Since the trial judge failed to state the law applicable to the material issue, the jury was obviously unable to apply the correct law to the facts before it.
This case is important for a number of reasons. Consider the following:
First, and most importantly, the court restricted the application of the “respondeat superior” doctrine. Under this doctrine, a “master” is legally responsible for the conduct of its “servants” committed within the scope of their duties. The court emphasized that according to this rule churches are not automatically responsible for the misconduct of their volunteer workers. While church volunteers may be “agents” of the church, more than this is necessary to impose liability on a church under the doctrine of respondeat superior. The volunteers must be “servants.” The court emphasized that “whether a given volunteer is in fact a servant generally depends on the charitable organization’s right to control the activities of the volunteer.” And, in evaluating the charity’s right of control, the following factors are to be considered: (1) the degree to which the charity orders the volunteer to perform specific actions; (2) the degree of contact between the charity and the volunteer; and (3) the structural hierarchy of the charity. This is a very important conclusion that will be a useful precedent to other churches who are sued for the actions of volunteer workers.
Second, the jury concluded that the church defendants were not negligent. Negligence is a second possible basis for church liability for the acts of volunteers (in addition to respondeat superior). Generally, persons who are molested by church workers allege that the church was negligent in hiring or supervising the molester. Negligence refers to a failure to exercise reasonable care. It is significant that the jury in this case concluded that neither the church nor the archdiocese was negligent. In part, this was due to the fact that neither organization was aware of the previous incident of alleged misconduct involving the tutor (showing pornographic movies to the children of church members in his home). This illustrates the importance of churches taking action on the basis of known incidents of inappropriate behavior involving church workers (or applicants for church work). Churches that use volunteer or paid workers with knowledge of such incidents are assuming a much greater risk of liability on the basis of negligence if the worker abuses or molests a minor during a church activity.
Third, it is interesting to note the size of the jury verdict against the tutor in light of the nature of the acts that he committed. The jury awarded the girl $170,000 as damages for her expenses, mental anguish, humiliation, and embarrassment. Doe v. Roman Catholic Church, 602 A.2d 129 (La. App. 4 Cir. 1992).
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